Enhanced Charges

Grand Rapids Drunk Driving Lawyers Help You Understand Enhanced Charges

Beyond the basic charges of Drunk Driving 1st, 2nd, or 3rd, other enhanced charges may be brought for a DUI/OWI where an injury to a third party occurs. There is a special category for drunk driving called DUI/OWI causing death or serious impairment. This category includes if the victim has an injury resulting in impairment, if the victim is killed, if the victim is a police officer or other emergency personnel, if the victim is pregnant, or if the victim is a minor child.

Drunk Driving Causing the Death of an Individual (MCL 257.625(4))

When a drunk driving accident causes the death of another individual, the drunk driver (defendant) is generally charged under MCL.257.625(4), which provides for harsher than normal penalties, along with possible immobilizing of the vehicle or seizing the vehicle regardless of who owns the vehicle (see MCL 257.904d ). Depending on the situation and the event, the prosecutor may, as his or her discretion, add other charges on to the initial Drunk Driving Causing Death OWI (Operating While Impaired), OWVI (Operating While Visibly Impaired), or OWPCS (Operating While in Possession of a Controlled Substance) charge. These additional charges may include involuntary manslaughter, manslaughter, or even second-degree murder.

As noted above, when someone has died as the result of the drunk driving accident, and the charge comes under MCL 257.625(4), the standard punishment includes fines and possibly imprisonment. The guidelines are $2,500 to $10,000 in fines, and up to a maximum of 15 years in prison. However, there is a separate guideline for someone who is determined to be “super drunk,” with a BAC of .17 or more, and a prior conviction for drunk driving within the past seven years. These enhanced guidelines include similar fines but allow for a prison term of up to 20 years.

However, while the prosecutor may bring charges under both Drunk Driving Causing Death and manslaughter etc., he cannot charge OWI third offense as well. This is because double jeopardy protects against this charging scheme and allows the charging of only one charge of either drunk driving causing death or OWI 3rd concurrently (See People v Garland, 286 Mich App 1, 777 NW2d 732 (2009) discussing when double jeopardy applies and does not apply to concurrent charges).

These penalties are serious enough that while the prosecutor’s office has the discretion to decide what they will seek in penalties and how they will bring the charges, they also have the burden of showing that the defendant was voluntarily driving while drunk, and that his or her drunk driving actually caused the death. In essence, the Michigan Supreme Court has stated that the prosecutor must prove a form of intent (as opposed to strict liability BAC levels) that the driver knowingly drank enough to become intoxicated, or that he or she purposely used a controlled substance that can impair one’s ability to drive, and then, knowing that they had consumed the alcohol or drugs, chose to drive (People v Schaefer, 473 Mich 418, 703 NW2d 774 (2005)). However, Michigan courts do not treat this issue of “intent” as an excuse, generally choosing to drink and then drive is a strong indication of intent in the court’s eyes.

Causation in Drunk Driving Causing Death of an Individual

The interpretation of MCL 257.625(4) by the Michigan Supreme Court has, in turn, fathered a whole sub-category of “causation”. Who or what truly caused the accident?

Generally, causation looks to two elements. First, whether the defendant’s operation of a vehicle was the factual cause of death, and second, whether the defendant’s operation of a vehicle was the proximate cause of injury. Proximate cause looks to whether the victims’ death was the direct and natural result of the defendant’s operation of a vehicle or whether there was an intervening cause that supersedes or severs the causal link.

Therefore the Supreme Court of Michigan has ruled that when a person decides to drink and drive, that person knows or should know that drunk driving is dangerous for both themselves and others; that accidents and fatalities are tied to drinking and driving. Therefore, the drunk driver is morally and legally responsible for causing the death of another person, and the penalties apply.

On the other hand, the court in People v. Feezel, 486 Mich 184, 783 NW2d 67 (2010), ruled that while the defendant, with a BAC of .268, was likely guilty of gross negligence, there was also a question of whether the victim was negligent as well. Essentially, the Feezel case involved an “urban deer” victim, who was also drunk and chose to walk down the middle of the road at night, against traffic, during a rainstorm. In this case, the question of causation had to include the victim’s status as drunk and likely impaired. However, including the victim’s toxicology report is not always automatic. In People v. Bergman, 312 Mich App 471, 879 NW2d 278 (2015), the victim’s report was not admitted to the court case. This is because while the victim may have been impaired, he was not in any way negligent and did nothing to contribute to the accident.

Other Issues to Consider When You are Charged with Drunk Driving Causing Death of an Individual

• Other Possible Charges

The court has ruled that a defendant may be charged with negligent homicide when the victim is a fetus who subsequently dies as a result of the accident. In addition, under similar facts as those found in a drunk driving causing death case, other charges may be brought instead or in addition to. Such charges include, but are not limited to, manslaughter ( MCL 750.321) 2nd-degree murder ( MCL 750.317) reckless operation involving a pregnant individual ( MCL 750.90e or MCL 750.90d).

Also, if the victim is an emergency worker such as a police officer, EMT technician, firefighter, etc., not only will the penalties include the ones under MCL 257.625(4)(c) for drunk driving, but may also include a second, separate felony conviction for “failing to use due care and caution when emergency vehicles are present causing injury or death to emergency personnel,” under MCL 257.653a.

• A Vehicle at Rest

The defendant’s vehicle does not have to be moving in order for there to be a drunk driving charge, only that the drunk driving caused the victim’s death. For example, if a drunk driver crashes his or her car, and then the car is subsequently struck by another because it was in the right of way, the defendant will be charged under MCL 257.625(4), even if he or she is no longer in the vehicle.

Drunk Driving (OWI/OWVI/OWPCS) Causing Serious Impairment of a Body Function

Drunk driving causing serious impairment of a body function is governed by MCL 257.625(5) and is a five-year felony charge. A serious impairment of a body function is defined in MCL 257.58c as a non-exclusive list of injuries, including loss of limb, eye, organ, and brain impairment, etc. Suffice to say, a serious impairment includes a broad category of body functions that can be considered.

Drunk driving causing serious impairment of a body function is a felony carrying a five-year maximum in prison and a $1,000 to $5,000 fine along with possible vehicle forfeiture and mandatory vehicle immobilization if the vehicle is not forfeited.

Causation

In a similar fashion to Drunk Driving Causing Death, the Michigan Supreme Court has stated that a charge under drunk driving causing serious impairment of a body function, MCL 257.625(5), requires the prosecution to prove that the Defendant’s driving, not intoxication, was a proximate cause of the accident. See People v Derror, 475 Mich316, 715 NW2d 822 (2006).

In summary, drunk driving can have serious financial consequences to a person who does not understand the law and how to defend against claims of a serious impairment of a body function.

Drunk Driving: Child Endangerment

A common issue with family members who drink to excess occurs when a person drives drunk with a minor child as a passenger in his or her car. If the passenger is under 16 years old, the driver will face additional charges of child endangerment. This charge carries penalties of, at a minimum, a fine up to $1000.00, and a one-year misdemeanor, along with possible vehicle immobilization and/or forfeiture ( MCL 257.625(7) ). However, if the driver has had a prior conviction within the past 7 years, whether or not the prior involved a minor child and a charge of child endangerment, the charges may be enhanced to a five-year felony (see MCL 257.625(25)(b)). While the charge will still be listed as child-endangerment first offense, the charges will be enhanced to also include mandatory immobilization.

If the intoxicated driver is himself or herself a minor too, he or she will be charged using the “zero tolerance” for minor’s guideline. The Zero Tolerance rule is given under MCL 257.625(6), and prohibits a minor from consuming any alcohol and driving, with a BAC threshold of .02. If a minor is involved in drunk driving and has a passenger under 16 years old, they may also be charged with child endangerment as an additional charge. A first -offense of child endangerment in this situation has different penalties than for an adult—a 93-day misdemeanor instead of one year for a first-time offender.

Civil Liability

Most defendants do not consider the civil liability that they may face should they be convicted of drunk driving causing death or a serious impairment of body function. However, this is dangerous as many of these types of cases result in civil litigation. The victim is likely to request a high amount for restitution. Further, before agreeing and settling with a plea agreement, one should always remember that most civil judgments may be dischargeable in bankruptcy, but under 11 USC 523(a)(9), a civil judgment based on unlawful operation due to intoxication is generally not dischargeable in bankruptcy. Therefore, a defendant must be careful in how a case is pled and whether he or she should plead at all in order to avoid a non-dischargeable debt.

Summary of Enhanced Drunk Driving Offenses

	Child Endangerment [MCL 257.625(7)]	Child Endangerment-Zero Tolerance w/occupant < 16 [MCL 257.625(7)(b)]	OWI/OWVI Deatd and/or Injury [MCL 257.625(4) & (5)]	Zero Tolerance [ MCL 257.625(6)]	CDL .04 BAC or higher OWI [MCL 257.625m (1)]
First Offense (no priors)	Misdemeanor Possible Fine/Jail: $200-$1,000 fine AND one or more of the following: Up to 5 days to 1 year jail; 30-90 days community service. Licensing Action: Suspended: 90 days. Restricted: 180 days 6 point offense Possible: immobilization of vehicle up to 180 days.	Misdemeanor Possible Fine/Jail: One or more of the following: up to $500 fine; up to 93 days jail; up to 60 days community service. Licensing Action: Suspended: 90 days Restricted: 90 year 6 point offense Possible: immobilization of vehicle up to 180 days.	Felony Possible Fine/Jail: Death – Prison up to 15 years and/or $2,500-$10,000 fine Injury – Prison up to 5 years and/or $1,000-$5,000 fine Licensing Action: Suspended: 1 year minimum 6 point offense Immobilization of vehicle: required up to 180 days, unless vehicle forfeited.	Misdemeanor Possible Fine/Jail: One or both of the following: up to $250 fine and/or up to 360 hours community service. Licensing Action: Restricted: 30 days 4 point offense	Misdemeanor Possible Fine/Jail: One or both of the following: up to $300 fine and/or 93 days jail. Licensing Action: CDL Suspended: 1 year HAZ Suspended: 3 years Operators Restricted: 90 days 0 point offense Permissive immobilization of vehicle up to 180 days.
2nd Offense or Any Prior OWI/DUI/OWPD Crime Within 7 Years	Felony Possible Fine/Jail: $500-$5,000 fine AND EITHER of the following: 1-5 years prison; or 30 days to 1 year jail and probation; AND 60-180 days community service. Licensing Action: Suspended: minimum 1 year. Immobilization of vehicle: 90-180 days, unless vehicle forfeited.	Misdemeanor Possible Fine/Jail: $200-$1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service. Licensing Action: License revoked. Immobilization of vehicle: 90-180 days, unless vehicle forfeited.	Felony Possible Fine/Jail: Death – Prison up to 15 years and/or $2,500-$10,000 fine. If BAC .17 or more prison for up to 20 years and/or same fine as above. Injury – Prison up to 5 years and/or $1,000-$5,000 fine. If BAC .17 or more prison for up to 10 years and/or same fine as above. Emergency Responder Death – Prison up to 20 years and/or $2,500-$10,000 fine. Licensing Action: Suspended: 5 year minimum. Immobilization of vehicle: required 90-180 days, unless vehicle forfeited.	Misdemeanor Possible Fine/Jail: One or more of the following: up to $500 fine; up to 93 days jail; up to 60 days community service. Licensing Action: Suspended: 90 days or if prior MCL 257.625 crime, then minimum 1 year.	Misdemeanor Possible Fine/Jail: One or both of the following: up to $1,000 fine and/or 1 year prison. Licensing Action: CDL Suspended: 10 year minimum Operators Restricted: 1 year 0 point offense Immobilization of vehicle: 90-180 days. Plate Confirmation: required.
3rd Offense or 2 Prior OWI/DUI/OWPD charges within a lifetime*	Felony Possible Fine/Jail: $500-$5,000 fine AND EITHER of the following: 1-5 years prison; or 30 days to 1 year jail and probation; AND 60-180 days community service. Licensing Action: Suspended: minimum 1 year. Immobilization of vehicle: 90-180 days, unless vehicle forfeited.	Misdemeanor Possible Fine/Jail: $200-$1,000 fine AND one or more of the following: 5 days to 1 year jail; 30-90 days community service. Licensing Action: License revoked. Immobilization of vehicle: 90-180 days, unless vehicle forfeited.	Felony Possible Fine/Jail: Death – Prison up to 15 years and/or $2,500-$10,000 fine. Injury – Prison up to 5 years and/or$1,000-$5,000 fine. Emergency Responder Death – Prison up to 20 years and/or $2,500-$10,000 fine. Licensing Action: Suspended: 1-5 year minimum Immobilization of vehicle: required 1-3 years, unless vehicle forfeited. Registration denial: required.	Misdemeanor Possible Fine/Jail: One or more of the following: up to $500 fine; up to 93 days jail; up to 60 days community service. Licensing Action: Suspended: 90 days or if prior MCL 257.625 crime, then minimum 1 year.	Felony Possible Fine/Jail: $500-5,000 fine and either of the following: Prison from 1-5 years; probation with 30 days to 1 year jail and 60-180 days community service. Licensing Action: CDL Suspended: for life if prior approval Operators suspended: minimum 5 years. Immobilization of vehicle: 1-3 years. Plate Confirmation: required.
(*within 10 years for licensing action to apply as 3rd instead of 1st)